BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130010520 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his undesirable discharge.

2.  The applicant states:

* he feels his character of service is incorrect and does not reflect his record of service while he was on active duty
* his character of service is more reflective of a general discharge as he committed no offense under the Uniform Code of Military Justice (UCMJ) that would have warranted a discharge of this nature
* he has matured since his discharge; he has now been married for 32 years with children and grandchildren
* he lost a lot of friends during Vietnam and not a single day goes by without thinking he should have been with them

3.  The applicant provides:

* Copy of a Bible cover
* An article titled "What is a Cop"
* Ohio Department of Administrative Services - Employee Performance Evaluations
* Letters from United Way
* Fraternal Order of Police application
* Photograph of a group of police officers
* Multiple certificates of police training, appreciation, and/or commendation 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 2 December 1969 for 2 years.  He completed basic combat training at Fort Bragg, NC, and he was reassigned to Fort Monmouth, NJ, for completion of advanced individual training. 

3.  On 16 March 1970, he departed his unit in an absent without leave (AWOL) and on 14 April 1970, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authority in Columbus, OH, and returned to military control at Fort Meade, MD, for processing, on or about 10 August 1970.  

4.  On 26 August 1970, court-martial charges were preferred against him for one specification of AWOL from 16 March to 10 August 1970.  

5.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge he indicated:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

6.  On 1 September 1970, the applicant's battalion commander recommended approval of the discharge action and stated the applicant's behavior pattern rendered him unsuitable for further military service.  He recommended an undesirable discharge. 

7.  On 9 September 1970, the separation authority approved the discharge action and ordered the applicant reduced to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  Accordingly, the applicant was discharged on 9 September 1970.

8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 4 months and 3 days of active service and he had 155 days of lost time. 

9.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

10.  He provides: 

	a.  Front cover of a Bible with the hand-written entry that he still has the Bible that was presented to him during basic training. 

	b.  An article titled "What is a Cop" with the hand-written entry that he wishes he learned these values when he was in the Army. 

	c.  Multiple employee performance evaluations related to his position as a deputy. 

	d.  Multiple post-service certificates of training, letters of appreciation, and/or certificates of commendation.  
11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Contrary to the applicant's contention that his character of service is more reflective of a general discharge, a request for discharge in lieu of court-martial normally carries an under other than honorable conditions discharge, not a general discharge. 

4.  The applicant's post-service achievements are noteworthy and were strongly considered.  However, they are not sufficiently mitigating to overcome the fact that he was AWOL.  The applicant clearly stated he was aware of the implications of his decision and that he had not been coerced.  He could have elected a trial by a court-martial if he felt he was innocent of the charges or if he had extenuating circumstances. 

5.  Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130010520



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ABCMR Record of Proceedings (cont)                                         AR20130010520



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